_:n8153f11c2b824bf8a2faddeb4c33338axb0
<http://schema.org/articleBody>
"<h2>Introduction</h2>\r\nIn July 2019, the Office of the Inspector General of DHS issued a memo urging that DHS take “immediate steps to alleviate dangerous overcrowding and prolonged detention of children and adults” in deten­tion facilities throughout the Rio Grande Valley.[footnote]Jennifer L. Costello, Off. of the Inspector Gen., DHS, OIG-19-51, Management Alert—DHS Needs to Address Dangerous Overcrowding and Prolonged Detention of Children and Adults in the Rio Grande Valley (Redacted) 1 (2019), https://www.oig.dhs.gov/‌sites/‌default/files/assets/2019-07/OIG-19-51-Jul19_.pdf [https://perma.cc/‌8M3K-6PKM].[/footnote] Like the detention centers subject to the memorandum, others across the United States have run out of space, and some are operating at triple or quadruple capacity.[footnote]Annalisa Merelli, U.S. Immigrant Detention Centers Are So Crowded Border Patrol Is Running Out of Storage Space, Quartz (Sept. 18, 2019), https://qz.com/1709887/‌detention-centers-are-so-crowded-border-patrol-ran-out-of-storage [https://perma.cc/‌T932-SKH5].[/footnote] Highly backlogged immigration court dockets are further intensifying the problem of overcrowded detention centers.[footnote]See Marissa Esthimer, Crisis in the Courts: Is the Backlogged U.S. Immigration Court System at Its Breaking Point?, Migration Info. Source, Migration Pol’y Inst. (Oct. 3, 2019), https://www.migrationpolicy.org/article/backlogged-us-immigration-courts-breaking-point [https://perma.cc/‌9DM3-DLW3]; Crushing Immigration Judge Caseloads and Lengthening Hearing Wait Times, Transactional Recs. Access Clearinghouse Immigr. (Oct. 25, 2019), https://trac.syr.edu/immigration/reports/579 [https://perma.cc/3AKA-8R8U].[/footnote] Recently, U.S. immigration court dockets totaled over one million pending removal cases, and the largest courts were tremendously underresourced,[footnote]Michelle Hackman, U.S. Immigration Courts’ Backlog Exceeds One Million Cases, Wall St. J. (Sept. 18, 2019), https://www.wsj.com/articles/u-s-immigration-courts-backlog-exceeds-one-million-cases-11568845885 (on file with the <em>Columbia Law Review</em>).[/footnote] causing some individ­ual removal hearings to be scheduled as far out as August 2023.[footnote]Burgeoning Immigration Judge Workloads, Transactional Recs. Access Clearinghouse Immigr. (May 23, 2019), https://trac.syr.edu/immigration/reports/558 [https://perma.cc/7PYE-93D4] [hereinafter TRAC Immigr., Burgeoning Immigration Judge Workloads] (“The three largest immigration courts were so under-resourced that hearing dates were being scheduled as far out as August 2023 in New York City, October 2022 in Los Angeles, and April 2022 in San Francisco.”).[/footnote]\r\n\r\nAs more asylum seekers enter the United States and remain detained in overpopulated detention facilities, and as immigration dockets con­tinue to pile high, pretrial release plays a key role in reducing the strain on the broader immigration system.[footnote]See, e.g., Kari Paul, Advocates Say the Fastest Way to Help Immigrants Separated from Their Children: Post Their Bail, Mkt. Watch (July 6, 2019), https://www.marketwatch.com/‌story/this-is-what-it-costs-to-free-one-immigrant-from-detention-2018-06-20 [https://perma.cc/‌F2N7-H24F] (describing the development of nonprofit “community bond funds” to help finance detainee bail bonds in the context of detention center overcrowding).[/footnote] Detained noncitizens can be released from detention until their removal proceedings if they can show they (1) would not pose a danger to other people or property, (2) would not pose a threat to national security, and (3) would attend hearings if released.[footnote]See In re Guerra, 24 I&amp;N Dec. 37, 38 (B.I.A. 2006).[/footnote] But in 2017 alone, more than 300,000 noncitizens were held in initial custody in U.S. Immigration and Customs Enforcement (ICE) facilities,[footnote]Katherine Witsman, Off. of Immigr. Stat., DHS, Immigration Enforcement Actions: 2017, at 10 tbl.5 (2019), https://www.dhs.gov/sites/‌default/files/‌publications/‌enforcement_‌actions_2017.pdf [https://perma.cc/UJ8N-V8XW].[/footnote] nearly double the amount of people held in federal prisons that same year.[footnote]Past Inmate Population Totals, Statistics, Fed. Bureau of Prisons, https://www.bop.gov/‌about/statistics/‌population_statistics.jsp#old_pops [https://perma.cc/‌4LKY-LBHJ] (last visited Jan. 12, 2021).[/footnote] The sheer number of detainees, coupled with steep increases in median bond prices—from $5,000 in FY2007 to $8,000 in FY2018—has led to unduly long stays in overcrowded detention facilities.[footnote]Stef W. Kight &amp; Felix Salmon, The Cost of Bail for Immigrants Is Surging, Axios (July 21, 2019), https://www.axios.com/immigrant-bail-bonds-costs-rising-ice-judges-2e3a06b6-9802-4157-a282-ac9e9587a10d.html [https://perma.cc/7HAD-2RZP].[/footnote]\r\n\r\nAdvocates and scholars argue that prolonged detention before removal proceedings dampens detainees’ opportunities to secure legal representation and even incentivizes them to self-deport.[footnote]See infra sections I.D.1–.2.[/footnote] Moreover, the rising costs of immigration bond can be scrutinized in light of recent legal scholarship on bail in the criminal context, which suggests that money bail is prohibitively expensive for defendants[footnote]John Mathews II &amp; Felipe Curiel, Criminal Justice Debt Problems, Hum. Rts. Mag., Nov. 2019, at 6, 6 (stating that “money bail or cash bail has led to a form of wealth-based incarceration” in which “people are held . . . in local jails because of their inability to pay bail”).[/footnote] and ineffective in ensuring their court appearances.[footnote]See infra section I.D.3.[/footnote] Much of the literature concerning pretrial detention deals with the criminal pretrial context, and few empirical studies have assessed the causal effects of pretrial immigration detention on several immigration-specific outcomes.[footnote]See infra section I.D.[/footnote] In particular, no studies have examined the relationships between (1) time spent in detention and a noncitizen’s propensity to opt to voluntarily return to their country of origin, (2) attorney representation at the bond redetermination stage and immigration proceeding outcomes, or (3) bond and a noncitizen’s flight risk.[footnote]See infra section I.D.[/footnote]\r\n\r\nAs an initial step in addressing this gap in the literature, this Note applies empirical methods commonly deployed in pretrial detention and bail scholarship to case data published by the Executive Office for Immigration Review (EOIR) in order to assess the impact of pretrial de­tention on immigration case outcomes. Through regression analysis of over eight million immigration cases, this Note tests three prevalent hypotheses about pretrial immigration detention: that prolonged immi­gration detention discourages noncitizens to pursue their cases and thus encourages them to self-deport, that attorney representation in a noncitizen’s bond reconsideration hearing is correlated with favorable immigration proceeding outcomes, and that money bail is not correlated with a reduction in flight risk. This Note concludes that there is not a strong association between detention lengths and voluntary departure decisions, that access to counsel at the bond redetermination stage may positively impact removal proceeding outcomes, and that, while money bond may help prevent flight risk, bail amounts may have only minimal effects on a noncitizen’s propensity to fail to appear in immigration court.\r\n\r\nThis Note proceeds in three parts. Part I presents an overview of bail generally, explores pretrial immigration detention, describes the impact that detention may have on immigration case outcomes, and explains the need for additional exploration. Part II lays out the empirical methods employed in this Note’s study and presents the study’s findings. Last, Part III discusses the study’s conclusions and implications, proposes policy and advocacy recommendations, and suggests avenues for further study."
<https://columbialawreview.org/issue/vol-121/page/3/>